Section 33 and causation:
Personal injury claims issued three years after the date of knowledge are time barred pursuant to section 11 and 14 of the Limitation Act 1980. However, it is often assumed that where a fair trial can still go ahead, the Court will most likely dis-apply the three limitation period and exercise its discretion under section 33 of the same Act.
The cogency of the evidence and the ability to defend a stale claim are the very important considerations when analysing the prejudice. However, careful consideration should be given to ‘all of the circumstances’, including a broad assessment of the merits of the claim.
This point is illustrated well in the recent case of B v Ministry of Defence  EWCA 1317. The Court of Appeal handed down judgment on 22 November 2010. The judgement is long but interesting in its analysis. The Court of Appeal held that:
1. A fair trial could still go ahead despite the passage of time.
2. The judge had erred in his broad assessment of the merits - the assessment was to be carried out objectively.
3. The Court of Appeal found that the prospects of proving a breach of duty were not good, but were not poor either.
4. The claims faced very great difficulties on causation: they would have to satisfy the "but for" test and could not rely on proving that any such breach had materially contributed’ to their injuries.
5. The expert evidence was such that the Claimants could not satisfy the but for test.
Consequently, the judge was wrong to exercise his discretion under section 33 because the Claimants’ prospects of establishing causation were hopeless.